Filed 8/10/23 In re N.F. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re N.F., a Person Coming 

Under the Juvenile Court Law.

B318674

Los Angeles County

Super. Ct. No.

18CCJP03317B

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

Linda P.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Nichelle L. Blackwell, Juvenile Court 

Referee. Affirmed.

Liana Serobian, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, Brian Mahler, Deputy County 

Counsel, for Plaintiff and Respondent.

_________________________
2

Mother appeals from the juvenile court’s order denying 

her post-permanency Welfare and Institutions Code1 section 388 

petition that asked the court to grant her reunification services

with her thirteen-year-old son N.F. The juvenile court had 

terminated its dependency jurisdiction over N.F. in January 2021

after appointing paternal uncle as his legal guardian. Mother

does not contest the merits of the court’s denial of her section 

388 petition. Rather, she argues the juvenile court’s legal 

guardianship order must be reversed because the court and the 

Los Angeles County Department of Children and Family Services 

(Department) did not comply with their initial inquiry duties

under the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 

§ 1901 et seq.) and related California law.

2 We affirm.

BACKGROUND

On May 24, 2018, the Department filed a section 

300 petition alleging N.F. (born April 2008) and two of his 

half-siblings—who are not the subjects of this appeal—were 

at substantial risk of harm due in part to mother’s substance 

abuse issues. The petition included an ICWA-010(A) Indian 

Child Inquiry Attachment form stating mother had denied Native 

American ancestry in a face-to-face interview.

Mother was present at the May 25, 2018 detention hearing.

The court went “through a series of documents” with her to 

1 Undesignated statutory references are to the Welfare 

and Institutions Code.

2 Because ICWA uses the term “Indian,” we do the same 

for consistency, although we recognize other terms are preferred. 

(In re Benjamin M. (2021) 70 Cal.App.5th 735, 739, fn. 1.)
3

confirm the information mother had provided, including a 

“Parental Notification of Indian Status” form.

3 The court

confirmed with mother that, as she had indicated by the box 

she checked on the form, she did not have any Indian ancestry 

as far as she knew. The court then asked mother, “Do you know 

if the fathers of the children have any Native American Indian 

ancestry?” She said, “No.” The court also confirmed N.F.’s father 

was deceased.4 The court thus found it had no reason to know 

N.F. or his half-siblings were Indian children, and ICWA 

therefore did not apply. According to the Department’s 

November 14, 2019 section 366.26 report, the court’s order as 

to N.F. specifically stated: “ ‘The Court does not have a reason 

to know that this is an Indian Child, as defined under ICWA, and 

does not order notice to any tribe or the BIA. Parents are to keep 

the Department, their Attorney and the Court aware of any new 

information relating to possible ICWA status. ICWA[-]20, the 

Parental Notification of Indian Status is signed and filed.’ ”5

On July 31, 2018, the court sustained the petition, 

amended by interlineation, removed N.F. from mother’s custody, 

and granted mother reunification services. Mother failed 

to reunify with N.F. The court terminated her reunification 

3 This form, known as an ICWA-020 form, is not part of the 

record.

4 The Department obtained N.F.’s father’s death certificate—

he died in July 2011. He and mother were married.

5 The record does not include the court’s May 25, 2018 

minute order.
4

services in July 2019 and set a section 366.26 hearing to 

determine N.F.’s permanent plan.

Between late 2019 and early 2021, the Department 

reported on N.F.’s adoptability and the family’s circumstances. 

Mother was serving a prison sentence in Arizona after being 

convicted of possession of methamphetamine with intent to 

distribute. She had not seen N.F. since August 2018 but had 

some monitored phone calls with him. N.F. had been living with 

paternal uncle in Texas since June 2019. Paternal uncle was 

committed to providing N.F. with a stable home through legal 

guardianship, rather than adoption. The Department’s final 

section 366.26 report and December 24, 2020 status review 

report stated ICWA did not apply and noted the juvenile court’s 

detention finding that it had no reason to know N.F. was an 

Indian child.

On January 14, 2021, the court held the section 366.26 

hearing. The court selected legal guardianship as N.F.’s 

permanent plan, appointed paternal uncle as N.F.’s legal 

guardian, granted mother monitored visitation, and terminated 

dependency jurisdiction over N.F. with Kinship Guardianship 

Assistance Payment (Kin-GAP) funding in place.6 Mother did 

6 “The Kin-GAP program is a state program that provides 

ongoing funding for children who exit the dependency system 

to live with relative legal guardians. In order to receive funding 

under the program the county welfare agency must enter into 

a written binding agreement with the relative guardian and 

dependency jurisdiction must be terminated. (§§ 11386, 11387.)”

(In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1211 & fn. 2.)

The court here terminated its dependency jurisdiction. (Id. at 
5

not appeal from the juvenile court’s orders or findings made 

at the section 366.26 hearing.

Almost a year later, on January 10, 2022, mother filed a 

section 388 petition in propria persona asking the juvenile court 

to reinstate reunification services and give her the “cha[nc]e to 

live together [with N.F.].” The court set a hearing on mother’s 

petition for February 24, 2022.

In its report responding to mother’s petition, filed 

February 17, 2022, the Department stated it had been unable

to contact mother. The social worker had tried to locate mother 

at the address she gave on her petition, had left voicemail and 

text messages at the phone number mother provided asking 

mother to call back, and had sent messages through social media 

platforms asking for a return call. The social worker spoke 

to maternal grandfather at the address mother had provided. 

He said mother had moved out three to four months earlier. 

He didn’t know her current home address or contact number. 

He agreed to give mother the social worker’s information if he 

had any contact with mother. 

N.F. told the social worker he wanted to continue living 

with his paternal uncle. He wanted to have calls and visits with 

mother but did not want to live with her. He didn’t know where 

she was living. The Department recommended the court deny 

mother’s section 388 petition.

p. 1216; § 366.3, subd. (a)(3).) The court nevertheless retained 

jurisdiction “over the guardianship.”
6

The Department’s response included the court’s earlier 

finding in May 2018 that it had no reason to know N.F. was 

an Indian child.

At the February 24, 2022 hearing, the court re-appointed 

counsel for mother and N.F. Counsel, mother (assisted by a 

Spanish language interpreter), N.F., and paternal uncle appeared

remotely by WebEx. Mother’s counsel asked the court to 

reinstate mother’s reunification services due to her changed 

circumstances—she had completed programs in her place of 

incarceration and had been released on December 8, 2021—and 

argued doing so was in N.F.’s best interests. She alternatively 

asked for a continuance so the social worker could interview

mother. The court denied mother’s request for a continuance 

and denied the petition.7 The court ordered: “[N.F.] will continue 

to reside with his paternal uncle under that legal guardianship, 

and the case remains closed through the Kin-GAP matter that 

I have already closed last year.”

DISCUSSION

1. Applicable law and standard of review

“To implement ICWA, the county welfare department 

and the juvenile court must determine whether a case involves 

an Indian child.” (In re Robert F. (2023) 90 Cal.App.5th 492, 499

(Robert F.), review granted July 26, 2023, S279743.) California 

law thus imposes on the juvenile court and the Department 

7 Mother does not raise any claim of error with respect to the 

court’s denial of her continuance request. She thus has forfeited 

the issue. (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 653 

[“An appellant abandons an issue by failing to raise it in the 

opening brief.”].)
7

“an affirmative and continuing duty to inquire whether a child

for whom” a section 300 petition “may be or has been filed, is 

or may be an Indian child.” (§ 224.2, subd. (a); In re Ezequiel G.

(2022) 81 Cal.App.5th 984, 998 (Ezequiel G.).) An “ ‘Indian 

child’ ” is “any unmarried person who is under age eighteen 

and is either (a) a member of an Indian tribe or (b) is eligible 

for membership in an Indian tribe and is the biological child 

of a member of an Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, 

subd. (a) [adopting federal definition].)

“ ‘The duty to inquire consists of two phases—the duty 

of initial inquiry and the duty of further inquiry.’ . . . [¶] ‘The 

duty of initial inquiry applies in every dependency proceeding.’ ” 

(Robert F., supra, 90 Cal.App.5th at p. 499.) The Department’s

“duty to inquire begins with the initial contact, including, but 

not limited to, asking the party reporting child abuse or neglect 

whether the party has any information that the child may be 

an Indian child.” (§ 224.2, subd. (a).) “In addition, ‘[f]ederal 

regulations require state courts to ask each participant “at 

the commencement” of a child custody proceeding “whether 

the participant knows or has reason to know that the child is 

an Indian child.” (25 C.F.R. § 23.107(a) (2022).)’ ” (Robert F., 

at pp. 499–500; In re Benjamin M., supra, 70 Cal.App.5th

at p. 741.) State law, in turn, requires the juvenile court, 

at a party’s first appearance, to ask “each participant present 

in the hearing whether the participant knows or has reason 

to know that the child is an Indian child” (§ 224.2, subd. (c)) and 

require each party to complete an ICWA-020 form (Cal. Rules 

of Court, rule 5.481(a)(2)(C)).

8 “The parties are instructed to 

8 Rules references are to the California Rules of Court.
8

inform the court ‘if they subsequently receive information that 

provides reason to know the child is an Indian child.’ (25 C.F.R. 

§ 23.107(a) (2020); § 224.2, subd. (c).)” (In re D.F. (2020) 55 

Cal.App.5th 558, 566.)

And, if the Department takes a child into its temporary 

custody under section 306, it “has a duty to inquire whether 

that child is an Indian child. Inquiry includes, but is not limited 

to, asking the child, parents, legal guardian, Indian custodian, 

extended family members, others who have an interest in the 

child, and the party reporting child abuse or neglect, whether 

the child is, or may be, an Indian child.” (§ 224.2, subd. (b); 

but see Robert F., supra, 90 Cal.App.5th at pp. 497–498 [county 

welfare department that took child into protective custody

“pursuant to a warrant,” rather than under section 306, “had 

no obligation” to ask extended family members about child’s

Indian status under section 224.2, subd. (b) (review granted 

on this issue, see S279743 and In re Ja.O., review granted 

July 26, 2023, S280572)].)

9 

If the initial inquiry gives the juvenile court or Department

a “reason to believe that an Indian child is involved,” then their 

duty to “make further inquiry regarding the possible Indian 

status of the child” is triggered. (§ 224.2, subd. (e); Ezequiel G., 

supra, 81 Cal.App.5th at p. 999.) Once there is a “reason to 

9 Extended family members include adults who are the 

child’s “grandparent, aunt or uncle, brother or sister, brotherin-law or sister-in-law, niece or nephew, first or second cousin, 

or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [adopting 

federal definition].) The record does not indicate whether the 

Department took N.F. into protective custody under section 306.
9

know” an Indian child is involved, formal notice under ICWA 

must be given to the child’s “parents or legal guardian, Indian 

custodian, if any, and the child’s tribe.” (§ 224.3, subd. (a); 

rule 5.481(c)(1); 25 U.S.C. § 1912(a).)

The juvenile court may find ICWA does not apply to a 

child’s proceeding if it finds the Department’s duty of inquiry 

has been satisfied and there is no reason to know that child 

is an Indian child. (§ 224.2, subd. (i)(2); rule 5.481(b)(3)(A).) 

The juvenile court’s finding that ICWA does not apply thus

“ ‘ “implies that . . . social workers and the court did not know 

or have a reason to know the children were Indian children 

and that social workers had fulfilled their duty of inquiry.” ’ ” 

(In re Josiah T. (2021) 71 Cal.App.5th 388, 401.)

We generally review the juvenile court’s ICWA findings 

for substantial evidence, “ ‘which requires us to determine if 

reasonable, credible evidence of solid value supports’ the court’s 

ICWA finding.” (In re Dezi C. (2022) 79 Cal.App.5th 769, 777, 

review granted Sept. 21, 2022, S275578; see also Ezequiel G., 

supra, 81 Cal.App.5th at pp. 1004–1005 [reviewing juvenile 

court’s finding that it had no reason to know a child is an 

Indian child for substantial evidence, but reviewing decision 

that ICWA inquiry was adequate for abuse of discretion].)

2. Mother’s claim of error fails

Mother appeals from the juvenile court’s order and findings 

made at the hearing on her post-permanency section 388 petition. 

She nevertheless asks us to reverse the court’s legal 

guardianship order on the ground the court and the Department 

failed to comply with their initial and continuing duty of inquiry 

under section 224.2 when the Department did not ask paternal 

uncle or maternal grandfather about N.F.’s Indian status. The 
10

Department argues mother forfeited her challenge to the legal 

guardianship order by not appealing from it, and it no longer 

had an ICWA duty of inquiry at the post-permanency proceeding. 

Mother did not file a reply brief to respond to these arguments. 

We agree with the Department.

As the Department notes, the juvenile court did not order 

a legal guardianship at the section 388 hearing from which 

mother appeals. The court selected legal guardianship as N.F.’s 

permanent plan, and appointed paternal uncle as N.F.’s legal 

guardian, at the section 366.26 hearing held a year earlier

on January 14, 2021.

Mother had the right to appeal from the court’s legal 

guardianship order, including the court’s implicit finding it 

continued to have no reason to know N.F. was an Indian child 

and the Department had satisfied its duty of ICWA inquiry. 

(See In re Isaiah W. (2016) 1 Cal.5th 1, 10 [parent could raise 

ICWA error for first time from order terminating parental rights 

made at section 366.26 hearing because order was “necessarily 

premised on a current finding by the juvenile court that it had

no reason to know [the child] was an Indian child”]; In re 

Josiah T., supra, 71 Cal.App.5th at p. 401 [juvenile court’s

finding that ICWA does not apply “ ‘ “implies that . . . social 

workers and the court did not know or have a reason to know 

the children were Indian children and that social workers had 

fulfilled their duty of inquiry” ’ ”].) There is no record mother 

ever appealed from the court’s January 14, 2021 legal 

guardianship order, however. The time to do so expired many 

months ago. (See § 395, subd. (a)(1); rules 5.585, 8.406(a)(1).)
11

Mother cannot now use her appeal from her 

post-permanency section 388 petition to challenge the legal 

guardianship order and findings made at the section 366.26 

hearing—including the finding that ICWA did not apply. (In re 

Daniel K. (1998) 61 Cal.App.4th 661, 667 [“ ‘An appeal from 

the most recent order entered in a dependency matter may not 

challenge prior orders for which the statutory time for filing 

an appeal has passed.’ ”].) By failing to file a timely appeal 

from the court’s legal guardianship order—entered at the time 

the court terminated its dependency jurisdiction—mother has 

forfeited her right to challenge the court’s implied ICWA finding 

made as part of that order.

As for mother’s appeal from the court’s denial of her 

section 388 petition on the ground the Department’s initial ICWA 

inquiry was inadequate, mother has failed to demonstrate error. 

When the juvenile court establishes a legal guardianship for 

a dependent child, the court “may continue jurisdiction over the 

child as a dependent child of the juvenile court or may terminate

its dependency jurisdiction and retain jurisdiction over the child 

as a ward of the legal guardianship.” (§ 366.3, subd. (a)(3).) 

Here, the juvenile court terminated its dependency jurisdiction

over N.F.—as required for his guardian to receive Kin-GAP 

funding—and merely retained jurisdiction over the guardianship.

(§§ 11361 [recognizing relative Kin-GAP legal guardianship

is “the permanent plan” for the dependent child allowing for 

dependency to be dismissed as “there is no need for continued 

governmental intervention in the family life through ongoing, 

scheduled court and social services supervision of the 

placement”], 11386 [eligibility for Kin-GAP funding requires

dependency jurisdiction to have been terminated].)
12

Accordingly, as the juvenile court did not vacate its order 

terminating its dependency jurisdiction over N.F.10 when it heard 

mother’s section 388 petition—and a section 300 petition was 

not being filed on N.F.’s behalf—the court’s and the Department’s

continuing duty of inquiry under section 224.2 was not 

implicated. The situation is thus distinguishable from that in 

Isaiah W. There, the parent failed to appeal from a dispositional 

order that included the juvenile court’s finding that ICWA was 

inapplicable. (In re Isaiah W., supra, 1 Cal.5th at p. 10.) Our 

high court held that, although the parent could not challenge 

that order through her appeal from the court’s order terminating 

her parental rights, because the juvenile court “had a continuing

duty to inquire whether [the child] was an Indian child in all 

dependency proceedings, including a proceeding to terminate 

parental rights,” the parent could challenge “the juvenile 

court’s finding of ICWA’s inapplicability underlying” the order 

terminating parental rights. (Ibid.) Thus, the parent’s “inaction 

in the face of the earlier order d[id] not preclude” the parent from 

claiming in her current appeal that the court erred in finding 

ICWA notice unnecessary. (Ibid.) 

That reasoning does not apply to the court’s order denying 

mother’s section 388 petition here for the simple reason that the 

hearing was not a dependency proceeding as N.F. no longer was 

a dependent of the juvenile court. Indeed, when the court denied 

mother’s request for reunification services, it specifically stated, 

10 A court that has dismissed its dependency jurisdiction

following the establishment of a legal guardianship may vacate 

its order dismissing its dependency jurisdiction. (§ 366.3, subd.

(b)(1); In re Priscilla D., supra, 234 Cal.App.4th at p. 1216.)
13

“[T]he case remains closed through the Kin-GAP matter that 

I have already closed last year.” (Italics added.) Unlike in 

Isaiah W., therefore, there is no basis for us to infer the court 

made a current no-ICWA finding when it denied mother’s 

section 388 petition. Nor does the record indicate mother 

asked the juvenile court to reopen the dependency case based 

on new information relating to N.F.’s possible Indian status. (See 

§ 224.2, subd. (i)(2) [juvenile court must reverse its finding ICWA 

does not apply “if it subsequently receives information providing 

reason to believe that the child is an Indian child and order 

the social worker . . . to conduct further inquiry pursuant to 

Section 224.3”].)

Moreover, as the Department asserts, ICWA did not apply 

to the post-permanency hearing on mother’s section 388 petition 

because it was not an Indian child custody proceeding. (§ 224.1, 

subd. (d)(1) [defining “ ‘Indian child custody proceeding’ ” as 

“a hearing during a juvenile court proceeding . . . that may 

culminate in” foster care placement—including guardianship 

placement—termination of parental rights, preadoptive 

placement, or adoptive placement]; see also 25 U.S.C. § 1903(1).)

ICWA notice must “be provided for hearings that may culminate 

in an order for foster care placement, termination of parental 

rights, preadoptive placement, or adoptive placement.” (§ 224.3, 

subd. (a).) The section 366.26 hearing at which the court selected 

legal guardianship as N.F.’s permanent plan was an Indian child 

custody proceeding; the post-permanency section 388 hearing 

was not. None of the above outcomes was possible at that 

hearing—mother was seeking to reunify with N.F. and for his 

ultimate return to her care. (See In re A.T. (2021) 63 Cal.App.5th

267, 274 [ICWA not implicated in a proceeding when dependent 
14

child is placed with a parent].) ICWA thus did not apply. (25 

U.S.C. § 1911(c) [“In any State court proceeding for the foster 

care placement of, or termination of parental rights to, an Indian 

child, the Indian custodian of the child and the Indian child’s 

tribe shall have a right to intervene at any point in the 

proceeding.”].)

Accordingly, as mother has failed to show ICWA or related 

state law applied to the hearing on her post-permanency section 

388 petition, we find no error.

DISPOSITION

We affirm the juvenile court’s February 24, 2022 order 

denying mother’s section 388 petition.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

I concur:

EDMON, P. J.
LAVIN, J., Concurring: 

I concur in the judgment. I write separately to clarify that I 

disagree with the harmless error analysis in In re Dezi C. (2022) 

79 Cal.App.5th 769, review granted September 21, 2022, 

S275578, and in the majority opinion in In re Ezequiel G. (2022)

81 Cal.App.5th 984. 

LAVIN, J.